Person affirms Hindu belief can get his marriage registered
When two petitioners (one is Hindu by birth and the other one declares herself to be a believer in Hindu faith) approached the High Court (HC) of Kerala in a writ in Pranav AM v The Secretary, Engandiyur Gram Panchayat after the Marriage Registrar declined to register their marriage under the Kerala Registration of Marriages (Common) Rules, 2008, the court asked the marriage Registrar to register the marriage considering it as a marriage solemnised under the Hindu personal law.
The first petitioner is an Indian citizen who belongs to Hindu Community and the second one is a citizen of Filipina who got converted to Hindu religion. Both of them had undergone sacred marriage ceremonies and rites according to the custom applicable to the community to which the first petitioner belongs, at a temple in Thrissur District and obtained a certificate issued by the temple authorities evidencing the marriage was solemnized on 13.9.2016.
Hindus alone marry under HMA
The marriage under the Hindu Marriage Act (HMA) can take place only between two individuals, who are Hindus only. The Marriage Registrar declined to register the marriage as one of the parties in the marriage is not a born Hindu. The decision was based on some HC judgments too.
If one of the parties is not a Hindu, merely because the marriage ceremony had been conducted in accordance with the Hindu religious rites, it is not possible to validate such marriage under the Hindu Marriage Act, as per the judgments of the High Court of Kerala in Sabu K. Eliyas v State of Kerala and Others [2014 (1) KHC 804], Rajesh Rajan v. Chief Registrar General of Marriages (Common), Tvm. and Others [2015 (4) KHC 752] and Thankamma Koshy v. State of Kerala and Others [2016(4) KHC 600].
A person can declare him to be a Hindu
When a person declares that he is converted to Hindu, that would be sufficient for the public authorities to act accordingly. There is no formal ceremony of expiation necessary to effectuate a conversion to Hinduism. Therefore, when a person declares that he is Hindu in his belief and conducts his/ her marriage as per the Hindu marriage law, his marriage can be registered under the common marriage rules.
In the absence of any particular mode prescribed for conversion as a Hindu, the public authority cannot refuse to act upon such request without pointing out any mala fides. This is what the judgements of the High court of Kerala in some other cases, including the above said Prnav A M case, indicate.
The judgment in Pranav AM case was issued by following the Division Bench judgment of the Kerala High Court in Betsy and Another v Nil [2009(4) KHC 560], and the Single Bench judgement in Ram Mohan Das v. Travancore Devaswom Board and Others [1975 KHC 299] which relied on the Supreme Court (SC) judgement in Perumal Nadar (dead) by Legal Representative v. Ponnuswami Nadar (minor) [1978 KHC 429].
Registrar decides only conduct of marriage
The High court says the Registrar, in fact, is not deciding upon the validity of such marriage but only entering into the satisfaction whether he is bound to register such marriage or not.
The 4th proviso to Rule 6 inserted by way of an amendment dated 16.2.2015 states that the marriage, other than one solemnized as per the law in India, shall not be registered under the Rules.
The Rule 10 points out to the nature of satisfaction to be entered into for registration of marriage after one year. When it is referred to the Registrar General for permission, it is only on proof of satisfaction that the marriage has been solemnized, the Registrar General is bound to give suitable directions to the local Registrar to register the marriage.
Registrar not competent to decide legality of marriage
The Marriage Registrar is only duty bound to conduct the summary enquiry as to the legality of the marriage. The Registrar is not the competent authority to decide on the competency to marry or validity of such marriage. He needs to have a prima facie view that the marriage has taken place in accordance with the personal law applicable to the parties. Once such a satisfaction is entered by the Registrar, he need not conduct further enquiry to the fact whether conversion to Hinduism or other religion is valid or not.
The judgement points out that in Indian context, the acceptance or acknowledgment into a community is understood based on the social interactions of such convertee, however an enquiry to be conducted for registering a marriage under the Rules is very limited as it has to be done within a shortest period of 45 days of marriage. On such background, it is very difficult for the Registrar to find out whether such convertee has been accepted by the community or not.
The court adds that the validity of the marriage in accordance with the person is still open for consideration by the court concerned in appropriate stage if any dispute arises in such marriage.
Registration is not a proof of valid marriage per se
in Seema v Ashwani Kumar [2006 KHC 121], wherein, the Hon’ble Supreme Court also observed that registration itself cannot be a proof of valid marriage per se and would not be the determinative factor regarding validity of a marriage.
Registration is prima facie evidence of marriage
Therefore, it is clear that the very purpose of registration of marriage is only to give a prima facie indication to accord evidence of marriage and not validity of such marriage. The validity of marriage depends upon the personal law applicable, if the parties get married in accordance with the personal law or depend upon the secular law that is applicable to such marriage.
The question in regard to the marriage under the context of the Rules is only limited for conducting an enquiry whether the parties are married in accordance with the personal law applicable to the parties or in accordance with the secular law applicable.
Once that satisfaction is entered into by the Registrar, the Registrar is bound to register such marriage, notwithstanding that he had entertained a doubt regarding the competency or capacity of the persons to contract or solemnize such marriage in accordance with the law applicable.
Marriage was performed and it needs to be registered
There is no dispute that the parties underwent ceremonies and rituals in accordance with the Hindu Marriage Act for performing the marriage, the Registrar ought to have registered the marriage.
The court directed the Registrar to register the marriage in the above case.
Conclusion
In short, what the judgements cited above bring to the fore is that when one party is a non- Hindu such a marriage cannot be solemnised under the Hindu law.
But when the non-Hindu who intends to marry under Hindu law, declares him/her to be a follower of Hindu faith, then such a marriage cannot be declined to be registered by the Marriage Registrar who has no authority to sit in judgement about the validity of such a marriage. When there is no formal ceremony of expiation necessary to effectuate a conversion to Hinduism such a declaration can be considered as a deemed conversion.
In case any question remains relating to the validity of such a marriage, then a civil court alone can decide on it.
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